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536; Baumgartner v. Hasty, 100 Indiana, 57; Indianapolis v. Miller, 27 Indiana, 394; Telegraph Co. v. Hess, 125 N. Y. 641; D., L. & W. R. R. Co. v. Buffalo, 158 N. Y. 266, 478; Daublin v. Mayor of New Orleans, 1 Martin (La.), 185.

No user or lapse of time can legalize such a nuisance. People v. Gold Run Min. Co., 66 California, 138, Ex parte Tayor, 87 California, 91; Bowen v. Wendt, 103 California, 236; Cloverdale v. Smith, 128 California, 230; Webb v. Demopolis, 95 Alabama, 116.

It devolves upon the company to justify the use of the streets by its poles and lines. Sunset Tel. & Tel. Co. v. Pasadena, 42 Cal. Dec. 593; D., L. & W. R. R. Co. v. Buffalo, 158 N. Y. 266, 478.

No claim of right under the act of Congress of July 24, 1866 (Federal Telegraph Act) is here presented.

The interstate commerce clause of the Constitution does not in itself confer upon the company the right to appropriate for the maintenance of its system portions of the streets of the city of Pomona. Competent authority from the State therefore is necessary. N. W. Telephone Exch. Co. v. St. Charles, 154 Fed. Rep. 386.

The expenditure of money by the company and the extension of its system, even though with the consent or at the request of the city, furnishes no authority to the company to maintain its lines. The mode whereby the city may contract or grant a privilege being prescribed, that mode constitutes the measure of the city's power in such respect, and any right granted or claimed otherwise is a mere nullity. Estoppel will not lie against the city in such case to deny the existence of the contract or privilege. Dean v. Contra Costa County, 122 California, 421, 422; Pac. Electric Ry. Co. v. Los Angeles, 194 U. S. 112; Pelham v. Telephone Co., 62 S. E. Rep. (Ga.) 186; TriState Tel. Co. v. Thief River Falls, 183 Fed. Rep. 854; Zottman v. San Francisco, 20 California, 96; Times Pub. Co. v. Weatherby, 139 California, 618; Frick v. Los Angeles,

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115 California, 512; Wichmann v. Placerville, 147 California, 162, 164, 165; Pavement Co. v. Broderick, 113 California, 628; McCoy v. Briant, 53 California, 247; French v. Teschemaker, 24 California, 518, 550; Brady v. New York, 16 How. Pr. 432, 444; Arnott v. Spokane, 6 Washington, 442; Chippewa Bridge Co. v. Duland, 99 N. W. Rep. 603; Murphy v. Louisville, 9 Bush. 189; Jersey City Oil Co. v. Mayor, 60 Atl. Rep. 381; Providence v. Electric Lighting Co., 91 S. W. Rep. 664.

Section 536 of the Civil Code, prior to its repeal and reenactment in 1905, in terms applied only to telegraph corporations and to lines of telegraph. It did not apply to telephone corporations nor purport to confer any rights in the highways as to telephone wires or lines. The company derived no rights thereunder to construct or maintain telephone poles, lines or wires in the streets of the City of Pomona.

The lines and wires of the company in Pomona, which were destroyed or threatened by the city, were not telegraph lines or wires, but were telephone lines and wires. Richmond v. Telephone Co., 174 U. S. 761; Toledo v. West. Un. Tel. Co., 107 Fed. Rep. 10; Cumberland Tel. Co. v. Evansville, 127 Fed. Rep. 187.

No rights were acquired by the company under § 536 of the Civil Code prior to its repeal and reënactment in 1905. The word "telegraph" as therein used does not include "telephone." Davis v. Pacific Tel. Co., 127 California, 312; Sunset Tel. Co. v. Pasadena, 42 Cal. Dec. 593.

The construction placed upon the word "telegraph" as contained in § 591 of the Penal Code in no wise controls the court in construing the same word as used in § 536 of the Civil Code. Because a word or expression as used in one statute is given a certain meaning, it does not follow that the same meaning must be given to it when used in another statute. The same word or expression may have different meanings even when used in the

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same statute. Endlich on Statutes, § 387; Rupp v. Swineford, 40 Wisconsin, 28, 31; L. & N. R. Co. v. Gaines, 3 Fed. Rep. 266; Wood v. Brady, 150 U. S. 18; Henry v. Trustees, 48 Oh. St. 671, 676; State v. Knowles, 90 Maryland, 646, 654; Wall v. Board of Directors, 145 California, 468, 473.

The rules of construction properly applicable to the particular statute or expression controls the courts in their interpretations thereof. A previous construction of the same statute or the same expression, arrived at under a different rule of construction, is not binding and will be disregarded. Blythe v. Ayers, 96 California, 532, 590; Dixon v. Pluns, 98 California, 384, 388; San Francisco v. Sharp, 125 California, 536; Hostetter v. Los Angeles St. Ry. Co., 108 California, 38, 44; Bartram v. Central Turnpike Co., 25 California, 284.

If a statute relating to the exercise of a franchise or a contract therefor is susceptible of two meanings, the one restricting and the other extending the powers of the grantee, that construction is to be adopted which works the least harm to the State. Water Co. v. Knoxville, 200 U. S. 22; Coosaw Mining Co. v. South Carolina, 144 U. S. 550; Covington Turnpike v. Sanford, 164 U. S. 578, 588; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Vernon Shell Road &c. Co. v. Savannah, 22 S. E. Rep. 625; Water Co. v. Freeport, 180 U. S. 587; Water Co. v. Danville, 180 U. S. 619; Rogers Park Water Co. v. Fergus, 180 U. S. 624.

In the construction of statutes, the intent of the legislature is to be given effect. This intent is to be found in the statute itself. Words are to be interpreted according to their meaning at the time of the passage of the statute. Tynan v. Walker, 35 California, 634, 642; Massey v. Dunlap, 146 Indiana, 350, 358; Sharpe v. Wakefield, 22 Q. B. D. 239, 242; Board of Works v. United Tel. Co., 13 Q. B. D. 904, 914; Aerated Bread Co. v. Gregg,

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L. R., 8 Q. B. 355; Brown v. Visalia, 141 California, 372, 375.

Statutes purporting to grant rights in the public highways to telegraph companies had no application to telephone companies. Richmond v. Bell Tel. Co., 174 U. S. 761; Cumberland Tel. Co. v. Evansville, 127 Fed. Rep. 187; Toledo v. West. Union Tel. Co., 107 Fed. Rep. 10; Sunset Tel. Co. v. Pomona, 164 Fed. Rep. 561, 573; S. C., 172 Fed. Rep. 838; Home Telephone Co. v. Nashville, 101 S. W. Rep. 770. See also Suburban Light Co. v. Boston, 153 Massachusetts, 200,

Section 536 of the Civil Code, as reenacted in 1905, was repealed, except as to "telegraph or telephone lines doing an interstate business" by the Franchise Act of 1905, commonly known as the Broughton Act (Statutes 1905, page 777). The company cannot justify its use of the streets under said section as reënacted.

So far as the Broughton Act was repugnant to and in conflict with the provisions of § 536 of the Civil Code, as reënacted, it operated as repeal thereof. See Ex parte Sohncke, 148 California, 262.

For the history of legislation in California purporting to extend authority direct from the State to use the public highways for the construction and maintenance of telephone lines, see Ord. Mains. No. 30, Pomona; No. 75 of Pasadena; No. 1130 of Los Angeles; Sunset Tel. Co. v. Pasadena, 42 California, 593; Horton v. Los Angeles, 119 California, 602; Home Tel. Co. v. Los Angeles, 211 U. S. 265; Telegraph Co. v. Spokane, 24 Washington, 53; Dean v. Contra Costa County, 122 California, 421; Los Angeles v. Davidson, 150 California, 59; McGinnis v. Mayor, 153 California, 711.

The lines of the company in Pomona which were destroyed or threatened by the city were not lines doing an interstate business within the meaning of the exception in the Broughton Act. Exceptions must be strictly con

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strued. Lewis' Suth. Stat. Const., 2d ed., § 352; People v. Morrill, 26 California, 336; Southern Bell Tel. Co. v. D'Alemberte, 21 So. Rep. 571.

Although there may be a technical distinction between a proviso and an exception, such distinction is generally disregarded. United States v. Coke, 17 Wall. 168.

The burden was on the company to show that its lines were doing an interstate business. Penn. Ry. Co. v. Knight, 192 U. S. 21.

The exception of "telegraph or telephone lines doing an interstate business" contained in the Broughton Act is not in itself a grant of a franchise to construct and maintain such lines. It is not the function of an exception or proviso to confer power or grant a privilege. Chicago v. Phoenix Ins. Co., 126 Illinois, 276; Commonwealth v. Hough, 22 Pa. Co. Ct. 440; Sunset Tel. Co. v. Pasadena, supra.

Section 19, Art. XI, of the constitution, as amended on October 10, 1911, is not to be construed as a blanket grant of a franchise from the State to use the streets of municipalities for the operation of telephone lines and the works of the other utilities mentioned. On the contrary, said section as amended repealed in toto § 536 of the Civil Code, as reënacted in 1905.

This court may here properly consider § 19 of Art. XI. A decree granting an injunction based upon a law repealed after the entry of such decree, but prior to the determination of the appeal therefrom, will not be affirmed. Cooley's Const. Lim., 6th ed., 469; 3 Cyc. 407; United States v. Schooner Peggy, 1 Cr. 103, 110; Yeaton v. United States, 5 Cr. 281; Mills v. Green, 159 U. S. 651, 656, 657; New Orleans v. Glover, 160 U. S. 170; Dinsmore v. So. Express Co., 183 U. S. 115, 120; Linn Co. v. Hewitt, 55 Iowa, 505; Vance v. Ruskin, 194 Illinois, 625, 627, 628; Wade v. St. Mary's School, 43 Maryland, 178; Muskogee Tel. Co. v. Hall, 64 S. W. Rep. 600, 604.